opening remarks.

it was more than 20 years ago i attended my first federal society national convention as a student. i still am remembering roaming the hauls of the may plow flower and seeing friends and running down luminaries and mostly skipping the amazing panels but never imagined i'd return as a judge and give these opening remarks. i thank the federalist society for this amazing opportunity. it's great to see so many friends and fellow judges at this conference. my old boss is here. he's somewhere out there. there he is. judge, it was truly an honor to clerk for you. everything i know about judging i learned from you. you're simply a model of excellence for our judiciary. thank you for your over 20 years of service to our country. let's see if there is anyone else.

is my good friend judge van dyke here? he was planning on coming but think he couldn't get through the metal detectors. actually, i remember he's not here because he's busy accepting his oscar for best video dissent, it's his best acting since his confirmation hearing. [laughter] judge bumatay: and the guys in the back doing the burpees, unfortunately their clerks aren't here and recovering from their chambers wide fast. judge newsome is at the conference and i'm sure he'll agree with everything i say this morning but will write about it in a 100 page occurrence about arbitration causes. and sadly judge jim ho is not with us this morning, and i went to yale so even i'm on his boycott list. but seriously, it's a true honor

to give this opening address. for these remarks, i'd first want to reflect on the upcoming anniversary of the declaration of independence. it's hard to believe that our nation was founded only 250 years ago. when i think about the declaration, i can't help but think about my family's story in the united states. there are through lines between the principles expressed in that declaration and the american exceptionalism my family has experienced firsthand. almost a century ago, my grandfather came to the united states from the philippines. he crossed the pacific with nothing more than the luggage in his hands. he landed in san francisco and found work as a farm labor, picking fruits and vegetables across california's farm fields. but he didn't stop there. through hard work and resilience, he put himself through college and even earned a p.h.d. he then returned to the philippines to start his family. years later, my parents

emgreated to the united states and moved to new york. unlike my grandfather, they had medical degrees and with their education and faith and family and a work ethic, they built a beautiful life for me and my sister. so i grew up deeply grateful for our country. that gratitude is what led me to dedicate my career to public service. as dean mentioned, i spent most of my professional life as a federal prosecutor in san diego, taking on the cartels, trying to ship dangerous drugs into our country. i served in main justice in washington, d.c., and worked with the associate attorney general, the deputy attorney general and the attorney general, the top three officials at the department. for baseball fans, i like to say, i hit for the cycle at the d.o.j. and for the past six years, i've had the privilege of serving as a judge on the ninth circuit, all opportunities i never could have imagined when i was a student sitting in your seats 20 years ago. so you can see, the american dream has struck my family three

times. first with my grandfather, second with my parents, and third with me. as my family's experience shows, this is truly an exceptional nation and with our country's 250th anniversary right around the corner, we should celebrate the principles of the declaration of independence is a large reason for that. the declaration inspired and nurtured the culture of individual rights and freedom that define our country today. the promises we're all equal in the eyes of the creator and we all have fundamental liberties like the pursuit of happiness. it was the constitution that transformed those promises into a binding law. as abraham lincoln put long ago, the constitution is a picture of silver framed around the declaration's golden promises. it was a legal framework created not by force or coercion but deliberation and consent. and that's why i'm an

originalist government authority comes from the consent of the government and the judges must follow the words of the constitution as the people understood them until the people decide to change them. failing to do so puts the judge's will above the people's. we're thus bound by the original meaning of the constitution. so i'm an originalist because my oath to the constitution commands it. it's no exaggeration to say we're on the golden age of originalism. most of the justices of the supreme court now openly identify themselves as originalists. even the other judges acknowledge at least in some way our laws must be grounded in historical meaning. originalists also populate the lower courts. unlike when i was a student, originalism is now taught and must be reckoned with in academia. in short, originalism has won the day on the battlefield of ideas. so it's fitting that the theme of this year's convention is new

legal frontiers. today's originalists face a new set of questions. what does originalism look like as the dominant judicial philosophy. what happens when we're no longer the underdog. how do we remove originalism from a critique to a governing doctrine? the answer, we must be bold. to continue this golden age of originalism we cannot rest on our laurels. after all, no victory is permanent. so what does it mean to be bold? justice scalia famously dubbed himself a faint hearted originalist because he sometimes struggled with its consequences but joked justice thomas was a blood thirsty originalist. yes. because of his unwavering adherence to the original public meaning of the constitution come hello high water. and justice thomas took it as a compliment. i would, too. after all, is there any higher praise than being called ruthless in your search for the right answers about the law?

this fierce commitment, this blood thirsty originalism is exactly what we need. whether you're a judge, a student, an academic or practicing attorney, you must all be diehard champions for the constitution. so what does it mean to be blood thirsty? let me tell you four ways. first, it's time we put the mantra of judicial restraint in its place. it rose to prominence because of the well worn courts. some used originalism as a way to achieve judicial constraint and thought it would lead to narrower decisions and enact democratic policies. and to be sure, originalism is a constraining philosophy and i would argue it's the most constraining of any judicial philosophy but because we appeal only to the constitution's original meeting and more of its

concepts like constitutional purpose or living constitutionalism it's more of a definition of context you'll meaning. and instead it focuses on political considerations and doesn't ensure we're following the original meaning of the constitution. so can prevent judges from reaching the results required by the constitution's texts and historical understanding. while it's wise to remember judges are unelected and we are the weakest branch, we can't ignore that our highest duties are always to the constitution. and we must acknowledge that we are now in a different time. judicial restraint isn't always a virtue in itself. fidelity to the constitution is. moving forward, we can't confuse the two so we must be willing to disregard judicial restraint whenever it gets in the way of following what the law is. second, blood thirsty

originalists must not hesitate to overturn nonoriginallist lower court precedent. judges don't work with a blank slate. we often encounter nonoriginallist bad decisions. trust me as a ninth circuit judge, i have that problem more than most. and to be clear, i'm not talking about vertical stare dicisec. no judge would question our decision to follow the supreme court and as judge gorsuch said lower judges may disagree with the supreme court decisions but never are free to defy them. what i am talking about is horizontal stare decises, which should circuit judges return justice? the answer is always. we all heard about the stare decises, the nature of the legal error, the quality of the reasoning, its workability, and

disruptive impact and reliance interest. it's important to remember these factors should be applied only by the court to overturn supreme court precedent. for the lower courts, it should all collapse into one. the first one, the nature of the legal error. it makes it easy. if it fails to agree with the lower constitution, it should dissent. the supreme court stare decisis does not exist for the lower courts and it must consider its nationwide impact. it takes far fewer cases and typically only reviews issues after they've percolated through the lower courts. meanwhile, lower court judges are in a different league, minor league. we handle much bigger, nondiscretionary cases. we could create binding law, as

few as two judges. circuit judges preside over small geographic subdivisions of the country, limiting our impact. further, we obvious immediately review our decisions through the unbunk process, diminishing reliance interest in those cases. lastly, we're not the final word. the supreme court can always intervene if it disagrees with our decision to overturn our own precedent. so while the supreme court jumps through the hoops of the stare decisis factors, lower court judges are free from the constraints and should always vote to return nonoriginal precedent. after all, can't always rely on the supreme court to clean up our messes. in the ninth circuit, we have a rule that we must sit unbunk to overturn precedent, so this might mean we should call more cases unbunk. and it may have ramifications

for collegiality on the court. i know the sting of having a decision i've written be later vacated. collegiality is important but it's not the end all and be all. to me it's more how we treat each other off the bench and outside our writing. and we must treat each other respectfully or we shouldn't disagree or highlight our differences. after all, our dudey is always to the constitution so while there may be a time and space for comb and pulling punches, that's rarely the case for defending our constitution. third, even when we're bound by nonprecedent, there's a major role for originalism to play and applying precedent we must bend it in the direction of the original public meaning. that doesn't mean we can take a cramped reading of president to functionally overrule it but

neither should we take an overly broad view of that precedent allowing to expand to new areas. instead, if we could find a good faith distinction, we should do so and return closer to first principles. as i said, our duty is apply the constitution, not to extend precedent. justice kavanaugh had it right when he explained text, history, and tradition must function as a gravitational pull in our interpretation of precedent so we can respect precedent while pulling in the direction of the constitution's original meaning. so we don't need to wait for cases with a complete blank slate or questions of first impression for the constitution's text and history to come into play. fourth, we shouldn't let party presentation principle override the need to reach correct legal decisions. you may hear judges talk about how they would love to follow originalism but they can't, simply because the parties haven't presented any historical

analysis in their briefing. to me that's no excuse. while it is of course true the parties must bring a case and focus the issues, that doesn't supersede our duty to follow the law. i recognize the supreme court has recently given the party presentation principles some new teeth. in the united states versus smith, the court relied on the principle to strike down a ninth circuit decision as an abuse of discretion. in that case, my court completely overreached by refashioning the party's issues to get to a desired outcome. but some lower court judges have read its importance. since it's come out, smith has been cited over 800 times and in many of those instances has been misused. it cannot be right the parties control everything about the case even the meaning of governing law. one extreme example comes from a d.c. circuit case, there a very

well respected judge wanted to decide a case relying on a repealed statute. the judge reasoned that because neither party had raised the law's repeal to the district, it was inappropriate to consider it. this effectively accepts that a judge is bound by the party's stipulations to the law. but that's wrong. judges are never obligated to follow the party's agreement to incorrect law. after all, the parties don't need to ensure the best interpretation of the law, ups do. so even though the judges generally rely on the arguments of the party's advance, we should never cede our duty to independently interpret the law. in my view, once a party raises a legal theory, judges may consider anything subassumed by that and we must not fashion a party's claims or legal theories but within a particular theory judges may consider any arguments, any sources, any

authorities that may be helpful, including those not raised in the briefing. so each the parties don't specifically make originalist argues in a constitutional case, judges are free to and must engage in the historical understanding of the constitutional text. our job is to get the law right and we cannot allow the parties to lead us astray with bad or incomplete arguments. just like we wouldn't ignore a dispositive case if the litigants failed to brief it. we shouldn't close ourselves off from any historical evidence that would guide us to the right conclusion. so regardless of the party's arguments, we always retain the independent power to identify and apply the proper construction of governing law. after all, judges are not like lemons, following the parties off the injures prudential cliff. in some we must be fearless advocates for the constitution. it wasn't long ago justice scalia stood all alone insisting

the constitution means what it says. as i said earlier, it's truly a golden age for those who believe in originalist principles, and yet even after all that success, we face those that say yes, i'm an originalist but there's a time and place for originalism. or i'm only going to analyze the constitution's original meaning when there's a true blank slate. to the judges in the audience, i'm here to say we can do originalism not once or twice in a career but once or twice in a day, be it the majority opinion, concurrence or dissent. people sometimes misunderstand what it means to be a blood thirsty originalist. it doesn't mean you take the most extreme position on judicial principles but i think justice thomas embraced that label because it means you're always an originalist, not just when convenient, not just when it suits your policy preferences, and not just when there's a blank slate. before i close, i'd like to talk to the students in the audience.

my message of being bold isn't just for the judges but for you, too. i know you've dealt with a lot these past few years. i know you might beal besieged on campuses but i hope your time this week will embolden you to return to your schools and advocate for your principles and organize events and debate your peers and don't be afraid to stand up for your values. as you'll see here, you're not alone, and then when the debate is over, go have a drink with your fellow students on the other side. i spoke earlier about collegiality among judges. you can be fierce adversaries in our writings but friends outside of them. that goes for students as well. and in the more than 20 years i've been coming to this conference, so much has changed because there's been generations of students like you willing to carry the banner for what they believe in. in other words, be the leader of the the new frontier and be blood thirsty leaders at that.

for experienced leaders and experienced lawyers and academics here, you have a critical role, too, helping the next generation to be bold. you have the capital and resources, the authority to stand up for them, guide them and support their efforts in their schools, firms, and beyond. it falls on you to nurture the next generation. in addition, push originalism in your scholarship and briefs. originalist scholarship and briefing pave the way for judges to undertake a more balanced, thorough analysis to the constitution's historical meaning. finally, i want to end these remarks by challenging all of you, i recently read frederick douglasss "what 2 watch 4" to a slave is the fourth of jewel? it's his speech about the declaration of independence. read it if you haven't. speaking in the 1850's, he observed the nation was still young, only 76 years into the american experiment. as he said, it was a mere speck

in the broad sweep of history. he argued our country had failed to live up to the promises of the declaration of independence, with the evil of slavery still in existence, not everyone enjoyed the rights it declared. instead of decline declaration he pushed every to embrace its ideals because he knew it would lead to greater freedom and justice. he told all that would listen, stand up for those principles, be true to them on all occasions and all places against all foes and at whatever cost. we should be proud of how far this nation has come, at almost 250 years old, i like to think we're still a young nation so we can still strive to reach the declaration's highest ideals, still become the more perfect union the constitution proclaims. now is not the time to be complacent. in fact, it's time to double down. at this coming semi centinnial,

we should adhere to the principles, and being faint hearted is not the answer. if we truly believe in our country we must defend the constitution in all places and against all foes and whatever costs. thank you for having me and >> well, good morning, everybody. and welcome to this morning's showcase panel. my name is morgan larson and i'm the president of the arizona state university chapter. and it is my privilege to introduce what may be one of the most remarkable gatherings of constitutional advocates in recent memory. the panel before you represents not only a lineup of brilliant legal minds but the architects of some of the most consequential decisions of our era. their cases have re-energized advocates of constitutional

restraint. they've recaptured what was thought to be lost legal ground and helped correct course on what justice alito feared was a deep corruption of our legal cultures, conception of constitutional interpretation. these fierce guardians of freedom refused to surrender to the fashionable extortions and thanks to their tenacity combined with the courage of their clients, we've witnessed a renewed fidelity to the text, structure, and history of our founding document. and with it a sense of stability to our most treasured freedoms. while this year marks the 20th anniversary of the roberts court, it appears that in many ways this decade, the one we're in right now, the 2020's will ultimately define its legacy. this decade is only halfway through and already the court has handed down a series of historic rulings. from vindicating equal

protection for students with fair admission, to eliminating unwritten amendments a and to throwing chevron difference into the sea and reaffirming the right to bear arms and preserving the state's historic dominion health and welfare. this morning's panelists were not merely observers to these developments but were on the frontlines. they stood at the lectern and fielded the questions and argued the cases that have shaped and will continue to shape our constitutional order. today they will reflect on these victories, the paths that led to them and what melee ahead for the roberts court. to help navigate this discussion, we're fortunate to be under the thoughtful guidance of the honorable katherine kim bell lizel who is a member of the federal judiciary, serving as a united states district judge for the middle district of florida. appointed in 2020 at the age of 33, she was the youngest article

3 judge in the nation at the time of her confirmation. before joining the bench, the judge practiced at jones day, served in several roles at the department of the judiciary -- i apologize, she also taught at the university of florida in scalia law. she earned her j.d. soumah cum laude at the university of florida and clerked at every level of the judiciary including for justice clarence thomas on the united states supreme court. we are so grateful to have her leading today's conversation and with that i'm honored to turn the program over to judge mizell. to introduce the rest of these constitutional heavyweights. >> thank you for that kind introduction and thank you to the federalist society for inviting me back this year. it's my honor and privilege to get to moderate this panel. i was asked to remind all for

the c.l.e. credit, please scan your code on the front and back before you leave today so you get that c.l.e. credit. that duty is done. i'm no longer the federalist judge, i think josh devine has taken that title so congratulations, josh. as the introduction said, this is the 20th year of the roberts court. it also marks the 40th anniversary of when attorney general ed meese gave his historic speech calling on the supreme court toe base decisions on its original meaning. due to no small part to those in the federalist society, the window of how constitutional analysis is done has completely shifted. justice scalia, dare i say justice thomas has made us all originalists. and we now have a roberts court where everyone purports to be

some form of realism. the justices have not coalesced how to do it. it's true the court has graph stated towards sect -- but they don't know how to weigh those factors. despite that uniformity, the panelists have had remarkable success in ensuring the stabilities. we want to restore the paths in the roberts court. we have scott stewart who serves in mississippi to discuss dobs, he worked at gibson dunn and clerked for justice thomas. next is cameron norris at contevoy mccarthy who will discuss students for fair admissions.

he also clerked for justice thomas. next we have paul clement, the former u.s. solicitor general and prolific litigator at the court to discuss bruin and bright. for diversity, he clerked for justice scalia. finally, we have matt rice, the solicitor general of the state of tennessee to discuss fernety and he also clerked for justice thomas and had the distinguished mark of playing professional baseball so he is the least nerdy on the panel this morning. with that i'll turn it over to scott. >> thanks very much, judge. it's an honor to be here and an honor to be part of this panel. thanks very much to all of you for being here in the federalist society for having me. at risk of talking about landmarked cases, a lot of people already know a lot about the case. so i think i'll tell you a little bit more behind the scenes, behind the curtains and want to in particular tell you in brief the story of how the decision was made to ask the supreme court to overrule roe

vs. wade and planned parenthood versus casey. dobs started as a challenge to mississippi's law after banning abortions after 15 weeks of pregnancy. the 15-week mark is important because of the way the supreme court defined the constitutional right to abortion in roe and casey and focused on viability when unborn children can live outside of the womb and today that's around 22 or 23 weeks of pregnancy and the court essentially dined after casey meaning the distinct cannot put a substantial obstacle in the path of a woman seeking an abortion before viability. you have a 15-week law and you have a rule you cannot impose a undue burden of substantial obstacle before 22 or 23 weeks. so the case tees up the question can a previability of prohibition on elective abortions survive under roe and casey. the lower courts said no, it's not possible you can't have a

undue burden and prohibition before viability and that's the end of the case. as long as roe and casey stand this 15-week had to fall. i came to the case quite late and watts not there in the district court or not there when the case was on appeal and not there in the summer of 2020 when the state of mississippi asked the supreme court to take the case. and i showed up, i became the solicitor general of mississippi in early 2021. at that time the supreme court had been considering kind of week in and week out for some months whether to take the case at all. so i kind of started the job. to be honest, i did not expect the court to take dobbs. i had thought the court would eventually deny review in the case perhaps with a separate writing, maybe a dissent suggesting there's a need to take a case of this sort or we should look closer to the issue. it was very much to my surprise in may of 2021 the court took the case. because i had no expectation the court was going to take the case, i had no strategy going

in. i had done no work on the case. i didn't really honestly know a lot of what the case was about at all. the first thing i did when i heard the court granted review was printed out roe vs. wade and went home and read it. these are maybe things you shouldn't say in public but there they are. obviously, i had to settle on a strategy pretty fast. things go fast and attention was all of a sudden very much on mississippi and what we were going to do. so the immediate question and the fundamental kind of fork in the road question in the case was what should we argue? should we argue for a faux overrule that the court should get rid of 50 years of precedent and take out roe and casey or argue for something more modest? you just say hey, you know, there's a way for this kind of a law to survive under roe and casey. i started talking to different friends. as everybody knows, the students if they haven't learned already,

lawyers have a lot of opinions and are very happy to share them with you. so i got a lot of calls and was very grateful for these calls and there was diversity opinion about the question of can a law like this co-exist with roe and casey? is there a way around that? some people said absolutely not and some said 15 weeks, that's plenty of time to get an abortion and not an undue burden. there was diversity opinion to that. as for the strategy and what to argue and what the court would be willing to do, there was a very strong consensus and the strong consensus and advice i got was the following and heard it time and again from the people that argued dozens of supreme court cases and never argued in the supreme court before dobbs. the advice was do not argue to overrule roe and casey. it's never going to happen and not why the court took this

case. if you make that argument you could lose, you could lose badly. you could destroy your career. i actually had a conversation with a group of friends, honestly, it felt kind of like an intervention. and what they told me, scott, this case is not about roe and casey. that was the flat-out message. so when you hear those kinds of things and trying to gear up for your first supreme court case, those are pretty bracing. these are friends, people who i was very grateful for their advice and have respect for and really know what they're doing, brilliant lawyers, but i saw the case a little differently. there were few things that i thought weighed strongly in favor of a different approach than the consensus view. and one is to me, very clearly the right argument is that the constitution does not protect the right to aworse, period. roe and casey are egregiously

wrong. you don't get more wrong as a matter of constitutional law than roe and casey. [applause] >> i thought that was the best argument and would always prefer to say i win on a correct view of the constitution than i win based on two very, very flawed decisions. i thought that was the best argument for mississippi and mississippi tried for a long time to protect unborn children and when dobbs was granted, casey was going on 30 years, roe was going on 50 years. that was the best thing for the state. and those were all good things but there's something to this idea of, you know, what is realistic and what is possible? what would the court be willing to do? and i took that very seriously. not every at-bat can be a grand slam and if you try to force it, you could produce something very bad. so all those things about the legal arguments and everything weighed strongly.

the thing decisive for me, it's something i have learned in my time in public service and doing hard cases and i think dovetails nicely with something judge bumatay said earlier today and it's very simple, it's not a legal principle but just this, there's magic in boldness. and when you stand up for the right thing and you do it in the right way, impossible things can become possible. and you know, i really respected what all of these brilliant lawyers, good friends were telling me, but they were intellectual arguments and intellect cannot fully comprehend the power of truth boldly stated of conviction, of standing on principle, of looking people in the eye and say do the right thing for the right reasons. [applause] >> so for me that was enough. i believed that if we did that, we did the argument in that way

and made the right argument for the right reasons, that we could win. we went for it. our lead argument was for full overrule and the case wasn't the same after that. >> thank you, scott. kim? >> great to be here. it reminds me of the argument. i can't really see you and i did black out that whole time. but i should start i got to participate in this case but all of the credit for the strategy, the thinking, the moves along the way, all the way up to the supreme court goes to our friend, the late will. he was the best lawyer i've ever met and ever will meet and was a great legal strategist and had this mapped out in his head before we ever filed it. and we filed this case in 2014. so i had just graduated law school when it was filed.

and i sort of weaved in and out of the case as it went to trial and i came back and was in part of discovery and came back for the appeal. i was in and out doing clerkships or what my dad likes to call government internships he never understood. but the case was filed in 2014 so remember, justice kennedy was still on the supreme court and we didn't have the court we do today or we did when the case finally went up there. and some of the thinking behind how the case was structured is i think pretty obvious but we were accused of hiding the ball which we -- the people said this case is just a means to overrule the gruder decision. count 6 of our complaint is overrule the gruder decision. very front and center of the strategy. you only sued harvard because harvard is really important and the model of all this precedent is built upon. yes, correct. that was the thinking.

[laughter] >> if you followed this area of the law, it sort of started, maybe a false start with a decision in the 1970's called baalke where justice powell rights an opinion for himself and that opinion attaches a portion of a ameek us -- ameekous brief. race is one small tie breaking factor among the last few in the class and all the weight it has and anything more than that is not going to satisfy title 6 or the constitution. a few years later there was an article that comes out, somebody should look at the history of how harvard got to that holistic factor of a factor admissions policy. what they found was that pretty openly admitted it was back in the 19 20's. because they were getting too many jewish students. because the thing justice powell

endorsed and justice o'connor's opinion and gruder latched on to had a pretty gross history. then we looked at harvard and other ivy league schools today and it had been reported at the time already the number of applications they were receiving from asian americans had gone way up and the number of asian americans being admitted had plateaued 17% to 18% pretty consistently across the ivy leagues. and the same sort of problem that holistic admissions so to speak was trying to solve in the 1920's looked like it was rearing its ugly head and discriminating again another minority group. then those of us who in the conservative legal movement who thought gruder itself was based on a law and wasn't using educational student body diversity and what they said because justice powell told them to say it and in reality they

were trying to construct a class with a similar demographic balance and could report that number to the public and make themselves look better, make themselves look better and was about racial balancing all along. so finally, we did sue harvard and looked under the hood for the first time since that amicus brief and someone got into the facts of how harvard was using race. the case took twists and turns and was not a smooth path and took eight years to get a filing to the supreme court path. will consavoy and tom mccarthy left their law firm mostly to file this case and started their own law firm and hired their first associate, mike connelly, wrote the complaint and got it on file and then harvard, we thought they filed a motion to dismiss but actually answered the complaint. which for those of you who are litigators means discover is starting for the three-person law firm and that was scary.

they hired friends of theirs, patrick strawberry, mike park and others and i came on and the firm grew to take on the case. each lawyer worked significantly on this case. and then we got all the way to trial and then we had a another oh no, moment and a lot of us were considered appellate litigators and hired bartlett back which is one of the best in the country, adam hughes and chris put together a great team and tried the case tremendously. took a lot of other twists and turns to get to where we were. we had a parallel case against the university of north carolina. that case really got pretty far behind the harvard case because of covid and various circumstances to where we had a sur petition before we had one at u.n.c. and messed up the vision of a public school and private school and having title

6 in the constitution there together but we got lucky and the court decided to ctsg to kick u.n.c. to be decided and allowed us to file judgment and will said we'd do it that way because that's how crowder and grass got up to the court. and that's how it worked out. i argued the harvard case at the age of 34 because will consavoy unfortunately got sick and he and tom could not do their vision of one arguing one and the other arguing the other case. will was sick and justice jackson got put on the bench as well as three other new justices and she was recused from the harvard case and now there was a need for two arguments, two lawyers. i got to be one of them. i'm very, very proud of being part of the team and getting to do the supreme court argument portion of it. a little worried i may have peaked at the age of 34 and done the most important thing i'll ever do. but if any of you have landmark

constitutional cases you'd like argued, i am available. >> thank you for that pitch. [applause] >> paul? >> so it's a great pleasure to be here. it's a little ironic i'm following kim because i feel like i'm a little bit of conservative action because of the scalia on the panel and that's a permittable form of affirmative action. i want to talk about two cases i was involved in, the brewen case and loper case and start with brewen and start with the consideration of timing and any time you're trying to move the goal posts in constitutional law, either getting a case overturned or getting an earlier precedent essentially reaffirmed or revivified, the timing

considerations are critically important. you can go all the way back to heller and think of the timing of heller because like the original complaint that cam was talking about even when the case moves relatively quickly, you could have changes in the court's personnel between the time you file your initial complaint and the time you get to the supreme court. it's worth recognizing that the heller case was filed while justice o'connor was still on the court and before justice alito was on the court. and if that case had gotten to the court a little bit quicker, we might be in a very different place in second amendment jurisprudence but as with all these things, there's a little bit of skill and a little bit of luck. by the time heller got up to the supreme court, we did have a court that was willing to really look at this as a matter of originalist first principles. justice scalia wrote an opinion that i think is one of the opinions that he was most justly proud of as most directly reflecting kind of his

jurisprudence in the heller case. just a couple years later he got the mcdonald case. that reaffirmed that heller wasn't just about the district of columbia or the federal code, it was also applied to all of the states and was a fundamental constitutional right. i was able to play a small role in the mcdonald cases in amicus and i sort of think back to law school and thought about all these debates of the incorporation doctrine and thought wow, this is really interesting stuff but i'll never get a chance to argue any corporation case. but but here it was. the second amendment. at the time i thought this was going to introduce a revolution in the second amendment because for 70 years the second amendment was essentially put on the back burner. the collective rights view of the second amendment prevailed in every circuit except the fifth and the d.c. circuit.

so logically if you imagine a world wherefore 70 years state and local governments were passing gun laws believing that they were essentially unrestricted by the second amendment, when the supreme court in mcdonald made clear that the second amendment applied to every state and local government. one would have thought there would have been mull -- multiple, multiple laws passed in the miller year that would be invalidated by the lower courts. as it turned out nothing could be further from the truth. it was business as usual. and remarkably the supreme court even though the thrust of heller and mcdonald seemed to be being ignored by lower court judges, the supreme court seemed uninterested in getting back involved in the second amendment game. i say this based on personal experience because in the years between mcdonald and bruen, i

filed at least a dozen unsuccessful cert petitions. it wasn't for lack of trying to get the issue back in front of the supreme court. i will give a tip of the hat to the thomas clerks on this panel to say, it wasn't for lack of dissents from the denial of serb yarry by sus tis thomas. justice thomas t look a long time and some additional modifications of the court's personnel. but eventually in the bruen case we finally got a case that the court was willing to revisit the second amendment. there wasn't anything particularly special about the lower court decision in the bruen case. in fact, the second amendment basically took it as a case that had been decided by virtue of an earlier second circuit case. so the lower court opinions were essentially nonevents. if you ask why did the court

take the bruen case, i think the true answer is because the court was ready to get back into the second amendment game after taking about a decade off. i'd like to think the cert petition had a little something to do with it. and in reviewing it for this panel, one of the things that i was particularly sort of proud of in retrospect was the reply brief. one of the things we did we had a circuit split that we could point to, but we also pointed out there was kind of even beyond the circuit split, there was a broader split in the country. what you had is, laws that restricted the right to carry were prevalent on the coasts. but in most of the circuits that would have probably been the places you really wanted to litigate, the right to carry issue, the laws actually were great. and the laws gave you either a right to carry or constitutional

carry. there was this weird dynamic where in addition to a little bit of a circuit split there were vast parts of the country where citizens could have their second amendment right to carry outside the home. then there are these blue corridors on each coast where the circuits had largely upheld serious restrictions on the right to carry. i think kind of the -- if there was some sort of reasonably clever strategy at the cert stage, it was really to shift the emphasis from just the circuit split to essentially a nation divide. in the context of a fundamental right that's supposed to apply equally from coast to coast, doesn't make sense to have a map where in vast swaths of the country you can exercise your constitutional rights, but on the coasts, you can't. the court did take the case. and the oral argument was certainly eventful. there was probably some of the

most interesting questions in discussing the history and tradition test from heller, what was the right history and tradition, what time period mattered most. was it the original framing? was it the framing of the 14th amendment? some of those issues were kicked around in the argument. i did leave the argument feeling pretty good. i will say one thing about this, which is obviously for good and sufficient reasons justice thomas gets a great deal of credit for writing the wonderful opinion that he wrote in the bruen decision that really did revive the second amendment and really did deliver on the promise of the heller case. but i think one justice who gets less credit than he deserves for the terrific result in the bruen case is the chief justice. because not only was the chief justice in the majority, but the chief justice made a conscious

decision to assign the bruen opinion to justice thomas. the chief had to know the kind of opinion he was going to get if you assign the opinion to justice thomas. that would be clear enough if you just met justice thomas, but remember, there is a decade worth of dissents from denial of sert rarry that laid out justice thomas' vision of the second amendment. and i think kudos to the chief for assigning this case to justice thomas. i think we got the wonderful opinion we did as a result of that. let me shift gears and talk a little bit about the loper case. here, too, i think timing is very important. most of you may have a sense that when the chevron doctrine originally entered the law, it

was something that most conservatives cheered. they had a very specific context actual reason to cheer and that was what the d.c. circuit looked like in the mid 80's. particularly judge wright and those judges on the d.c. circuit were really making life difficult for some of the deregulatory impulses of the reagan. so in a sense at the time of chevron, i think it was largely applauded by most conservatives. i think efforts to get chevron overruled 10 years in, 20 years in probably would have been wildly unsuccessful. i think the flaws of chevron really started to show the longer and longer he that it was on the books. my own view is that the fundamental difference in thinking about chevron, especially among conservatives, is that the original decision in

chevron was thought of as a choice between the executive branch and the judiciary as to which one was better positioned to interpret ambiguous statutes. there's some logic to the sense if we are down to the executive branch anti-judiciary -- and the judiciary, at least the executive branch is more politically accountable than the life tenured judiciary. maybe it makes sense in cases of true ambiguity to give some deference to the executive branch. i think over time what became clear is that ignored the effect on the third branch. the effects of chevron over time on congress and the ease with which congress could essentially decline to engage on difficult and important issues because at any one time roughly half the senators or half the representatives had friends in the executive branch during a democratic administration, all the democrats had friends in the

executive branch. and vice versa when the republicans were in the executive branch, a lot of the people in the executive branch were former congressional staffers. why tackle a difficult and controversial issue and maybe compromise with the other side when you can call up your friends in the executive branch and get an executive order or rulemaking that essentially gets you everything you want. over time i think the debilitating effect on congress became more and more clear. other defects with chevron and its application in the real world, the fact that moab really agreed -- that nobody really agreed on what ambiguity meant. a judge said he never got to step 2 of chevron. which is kudos to him. but there are other judges in other circuits where all the action was on step two and there was deference to everything. the timing was right to have the court revisit chevron. here, too, i had taken a crack

at chevron in an earlier petition or two, but i was really delighted to get a call one day from my friends, and it was an invitation to get involved in this case loper-bright which i hadn't been previously involved in. and it was an invitation that i accepted sloons i heard about the facts of this case. because the facts of the case were what, in my view, gave us a chance to make this the vehicle to get the supreme court to take another look at chevron. what i particularly like about the facts of the case, most of you are familiar, this is a case where the national marine fisheries service decided in its wisdom that when it didn't have enough monitors to enforce all of the various regulations that imposes on the fishing industry, that the right solution was to not -- to have fewer regulations, but to make the fishing industry pay for

attentional monitors. the small fishing vessels not only had the indignity of giving up one of the scarce seats on their boat for a monitor, who couldn't do any fishing but would just check and make sure all these regulations are being enforced, not only did they have to give way for that officer, they had to pay their salary. and that, to me, seemed really egregious case for a couple of reasons. why is, one of the few arguments you could make in favor of chevron was agency expertise. maybe if you are talking about whether some really complicated 13 syllable compound is a hazardous waste, maybe there is a role for some agency expertise. but how much agency expertise does it take to say that when we have run out of money we will impose what is effectively a tax on the regulated to pay for additional monitoring of our

voluminous regulation. that doesn't take any expertise at all. that's just sort of bad big government in action. the facts really sort of spoke to me. then i did one of my favorite lines from the ce are. t petition was something to the effect of -- cert petition, was something to the effect of, not to quarter soldiers in your home. even the british didn't think the clonianists didn't have to pay the red coats' salary directly. and that was really -- having helped revive the second amendment, that was part of my nascent effort to revive the third. i'll try to wind up. in the cert petition we presented an issue very specific to the statute at issue and offered the second question presented should the court substantially cut back or overrule on chevron. to my great surprise after multiple relists, the court granted cert limited to question

two. it was clear when we went into the oral argument the court was really going to be swinging for the fences in this case. i'll finish by saying here the chief justice had another great decision in terms of who to assign the opinion to. he assigned to to himself. and i think on these administrative law questions and these questions of the separation of powers, the chief really does feel very deeply about these issues in the same session as loper-bright. he also wrote the case where he also laid down a great landmark for the separation of powers. walking out of the argument i think the big question was, is the supreme court going to go all the way and overrule chevron, or is it going to so-called keyserize chevron and say, well, it doesn't apply many places but we are going to limb its am itions -- its

applications. i will close my three 235eu6r9 to strike the last word is chevron is overruled. [applause] thank you, matt? >> thrilled to be up here with this great group of c.t. clerks and paul. less thrilled about having to go after paul's very insightful comments. as you all know the skrmetti case was a challenge of tennessee's law to protect kids from risky transgender interventions. the aclu in the biden administration brought suits seeking to enjoy the law and it made its way to the supreme court. that's where i first got involved. the case was handled below by cam norris, adam, and some folks on our team. but cam assured me even i couldn't lose this case. i tapped in at that point.

ultimately we did get the win. the supreme court upheld the law under the equal protection clause. i think it's important how the court did so. the court's decision turned largely on its classification analysis. it tracked very closely with a decision and ultimately held tennessee's law only imimposed age and medical use classifications, not on the basis of sex and transgender status. and given that the classifications were based off of primarily medical use, the court said that rationale basis for review applies, it declined to second-guess the decision by the tennessee legislatures noting that states have wide discretion when it comes to areas of medical and scientific uncertainty. i kind of want to highlight two high level take aways from the court's decision and from this case. and first, i think that the arc of this case encapsulates the dangers of turning over and

surrendering the constitution to what justice thomas referred to as the expert class. a few years ago when these cases started, states were being sued over these laws throughout the country. they were almost uniformly losing in these cases. and invariably the lower court decisions would point to the so-called medical guidelines from wpath and other supposed expert health organizations. indeed, when the united states sought cert, it put in its petition that overwhelming evidence supports these interventions and that the overwhelming consensus of the medical community was that this was the proper medical standard of care. but that narrative disintegrated at almost the same time that our case reached the court. that happened for a couple of reasons. one, the activists made the horrible decision of going after

the great state of alabama. alabama had its own parallel litigation and during discovery general licor, now judge, and general marshall uncovered what were i think for most people devastating emails. these were supposed to be medical guidelines, and instead the emails showed a process that was rife with political considerations, with policy considerations, and i just want to read one of the emails that was discovered in the alabama litigation. this is a quote, our concerns echoed by the social justice lawyers we spoke with is that evidence-based review of these interventions reveals little or no evidence and puts us in an untenable position in terms of affecting policy or winning lawsuits. so these were the experts that

the federal courts were deferring to. at about the same time the united kingdom published an independent review by dr. hillary cass. that independent review found, quote, remarkably weak evidence in support of these gender transition interventions in kids. that led some of the countries that had pioneered these interventions, sweden, finland, the u.k., not exactly conservative meccas, to pull back and restrict the use of these interventions in kids. ultimately at oral argument the aclu's attorney was forced to admit there was no evidence in the studies that these treatments, treatments redues suicide. that was a main talking point. that was a driving force that we saw below. and it unraveled as our case reached the supreme court. i do think that these cases laid bare the dangers of simply

deferring to the so-called experts when it comes to interpreting the constitution. whether it's abortion, whether it's covid, whether it's gender transition these experts are taking policy positions to move forward their policy preferences. i don't think the court should be embracing that. the second -- [applause] the second point i want to make about the court's decision, i thought it was a pretty clear signal from the roberts court that the judiciary needs to leave the political battles where they belong. which is in the political process and the democratic process. for decades advocacy organizations have asked the federal judiciary under the guise of constitutional interpretation to confer rights that they were unable to gain support of in the democratic process. in the court of the old days was

largely granting them those rights under the guise of constitutional interpretation. but here the court just said no. it refused to constitutionalize one side's view of a disputed medical question. by doing so i think it reaffirmed that politically accountable lawmakers and the democratic process is where this belongs. much like the court did in the dobbs decision when it returned the issue of abortion to the states. i do think that that refusal to create new constitutional rights and to adhere to the original meaning of the constitution is what's driving a lot of the unfounded attacks on the court right now. it's always amazing to me how they can characterize the refusal to create a new right as somehow justifying the notion that there is a run away supreme court. i think that the court knows that long-term adhering to the strictures of the constitution like it did in the skrmetti case, like it's been consistently doing as of late, is what maintains the court's

legitimacy. the court refused to get caught up in the political winds of the moment. and adhere to the original meaning of the constitution. i hope that trend continues. [applause] >> thank you for the opening remarks. paul and cam, you talked about the historical trajectory how you achieved the final rulings at the supreme court. scott, i know you said you inherited the case after you became m.s.g. could you talk about how there had been groundwork laid certainly with trying to overrule roe v. wade before you took over the case? >> sure. especially in a case as everyone knows, the issue of abortion is unique in american life. people's convictions and feelings about roe and about casey, again they go back decades. and dobbs was a late entry in a long process of trying to make

progress on potentially getting rid of roe and casey. there were a lot of difference pieces. some were advocacy some were efforts that didn't play out maybe constitutional amendments. what was happening quite a bit, i actually remember being a law clerk at the time, there were efforts to try to get more involved in imposing health regulations on abortion procedures. and i think the challenge that a lot of those laws in cases like heller, the arguments were made under roe and casey, they were very, very hard to win. if you are arguing under those things, you are in a challenging spot. what ended up happening a little bit more in the leadup to dobbs was states started enacting laws similar to this 15-week law. i believe some were 18 weeks. to see if, hey, can we test this viability line, how firm is it?

how central is it to roe and casey. none of those took off in the sense of getting granted for review in the supreme court. so this 15-week law came about. a lot of thought was given to it. a lot of care was given to it by very smart and careful lawyers. and getting the legislation well-done. that was quite helpful. one big -- paul mentioned this a little. when weigh talking about lobar-bright. the story matters a lot. in these cases. if a legislature or a group that wants some movement in the law does not establish, can tell the story for itself, that story will be told some way or another. one very nice thing done in dobbs itself was the legislature laid out a set of findings about unborn life, about abortions, risks to women, the effects of abortions on doctors who end up performing them. and it made it so the story of the case kind of wrote itself.

other things i just add before closing on the point are, a lot had changed since roe and casey. of course obviously abjustice alito's ultimate opinion made clear, a lot of things that were asserted to be true in roe and casey were not defensible about history, science, the effects of abortion, about unborn life, all those things. ultimately through a lot of efforts of a lot of other people, before again i ever got involved in the case, the truth was kind of undeniable, which i think is ultimately why -- most of the case ended up being about not what is the right answer to the constitutional question. most we talked about was starry desighcies. that was our brief. >> we have talked about originalism now at the court. certainly the court looks to things like history and tradition, particularly in

bruen. we also see justices disagreeing about how to do that and what matters. for example rahimi we saw except rat writings on different justices views. does anyone want to comment on trends we are going to see in the next few years with the roberts court on these originalist disagreements? anyone? >> i won't leave you hanging. i think that -- obviously you are seeing this in the second amendment context. you see it in other context where the court has emphasized the importance of history and tradition. i guess what i would say is -- to the extent that the justices or lower court judges are engaging on that issue and disagreeing, i mean what a wonderful world we are living in when that's the terrain that judges and justices are deciding some of these questions and

taking it seriously. as i guess the senior statesman of this panel, i can maybe appreciate just how different that is from when i first started practicing before the court. to the extent that not everybody sort of does history the way that i would sort of prefer them to do or to the extent that there are kind of debates about whether the right period of flaming is the english bill of rights, the united states' bill of rights, or 14th amendment. that's such a radical improvement from the way things used to be. that i sort of kind of celebrate where we are. where we go from here, i think, is probably down to a lot of the people in this room. but there is some real

opportunities to kind of reinforce the privacy of -- primecy of history and tradition. critics -- primacy of history and tradition. critics of traditionalism more broadly talk about law, and impresignificance of the use of history. in some respects that's a challenge we need to prize to. on some of these issues there isn't much history. on some of these issues only so much you can squeeze out of the statute of north hampton or whatever. but that's ok. the lack of history ought to create room for the political brarchtion to do things -- branches to do things not for courts to make stuff up. i think continuing to engage in this debate about both the primacy of history, but also the limits of history and good uses of history and good history versus bad history.

i think that's going to be an important process in the decade to come and the next segment of the roberts court. i do think the challenge to those of us that sort of believe that that is actually the right way to interpret the constitution, is to really continue to fight for the vibrancy of that and to get back and put into word for justice scalia. part of why he believed in both originalism, original public meaning, and the use of history and tradition, is because he did think ultimately there were answers there that would constrain judges and keep them in the proper judicial role. i think keeping that in mind as we have these debates about the proper use of history i think is critical. >> looking for next horizons, what will the emergency docket, how will that impact the cases

that the court takes and how they frame them and analyze them? do you think that will continue to have such a prominent role in the next few years? >> happy to weigh in there. i worry a little bit that the emergency docket takes up a lot of the oxygen and a lot of the court's attention. i know that's a concern probably many share. i don't want to put -- a lot of people put the blame on the supreme court. you could say, why are there so many nationwide injunctions in the first place that they need emergency action. the claim could be on the district courts that are overreaching. those do take a lot of time and resources from the court and they result in opinions that i don't think are going to be here for the long term. they are short, less explained. they are presidential values debated. really wish we have the greatest supreme court in my lifetime, i

wish the court would take more on the merits docket. i'm hoping the merits docket keeps declining, i hope that's not because they can spend more time on the emergency docket. >> the small merits docket, how does that impact each of your's decisions granting cert or questions taken up by the court given how few feu very do? >> it's hard to get cert granted. i'm with cam, i'm hopeful if lower courts are faithfully applying casa, there will be less statewide and universal injunction that is require us to go up there on an emergency posture. we don't love to have to file these emergency stays. times when our laws have been enjoined statewide, still continuing to happen even post casa, we are forced to do so. i do think the court is also hearing the criticisms. i think they are unwarranted. back when i was clerking, just 2019, they weren't taking stays and putting them on the oral argument calendar. they weren't hearing them more

like they hear merits cases. but i think they have been doing that more and more and responding to the criticisms of the court and of the emergency docket. which i don't think are super warranted. my last point on the emergency docket, i know there's been recent call for more reasoned decisions from the supreme court. i'm a contrarian view. i don't think that will be super helpful because they are done so quickly as cam said, and because the criticisms are not coming from the lower court. the low rt courts are the legal scol -- the lotter courts are the legal scholars. it's come interesting the mainstream media that don't like the outcome whatever the decision is. even if they write out the reasoning more, i don't think the criticism will go away. they won't like the outcomes and you'll have the same decisions. >> those points are well stated. another observation on the emergency docket. i clerked on the court in 2015

to 2016. i was talking to a co-clerk yesterday. neither of us could remember the united states solicitor general filing the entire term. we were the last term that could say that. you always have the emergencies associated with executions, inherently important and by their nature end up last minute. we just had what felt like a handful of those. no later term of clerks could say that because it's so prominent. an observation i might offer is that around the time i clerked it felt like during the obama administration, the last time i recall a lot of meaningful amount of substantial large comprehensive legislation happening. we are 30 years from edpa. it's been a while since we had a big overhaul of the immigration laws. d.o.d. frank, the -- dodd frank,

the affordable care act are some years behind. most of the policymaking takes place in the executive branch by executive order or by administrative action. if those things are just put completely on pause, there is going to be an overwhelming inclination and desire for the executive branch to try to get that corrected as quickly as possible. the other possibility is just wait a year and a half, two years, 2 1/2 years most of the presidential term to get those things corrected. i think it's a little bit perhaps a function of where much of the policymaking is taking place. and perhaps the inability to get larger policy measures through congress. the way that has happened in past decades. >> if i could just -- i think scott's right about that last point. i think the framers had a vision for where the policymaking should take place. they probably thought it was the article 1 branch. i do think that the low merits

docket may be a little bit of a product of kind of where we are on the separation of powers and the fact that congress kind of hasn't passed a lot of landmark legislation in recent years. i do think part of the court's merits dock set about a 10-year lag effect of major legislation. when i was in the s.g.'s office, every term the court had one or two americans with disabilities act cases. 10 years earlier that was a big statute. it was also a statute that had some ability for private parties to enforce it, which is a formula for creating circuit splits and all that stuff. that is part of the puzzle. i do think part of the puzzle is the court -- i don't know if it was because of covid or whatever it was, the court sort of gotten used to the idea that 60 merits cases is a good round number. and that seems kind of crazy to

me from a historical perspective. when i was clerking it was a nice round number of 100. candidly nobody was that overworked. and i do think that the fewer cases does have some negative effects for the court itself. because every year there's going to be somewhere between five and 10 big hot button, more social issue cases. if that's 16% of the court's docket is social issues where the court's closely divided, there is going to be a perspective of the court that inevitably comes from that. whereas if there are more and more cases that the court decides, the hot button issues are smaller percentage and there are more cases where the court decides cases unanimously or nearly unanimously. i think that gives rise to sort of a different image of the court in the public mind and probably one that works better for the court.

i do think, obviously i have my reasons to think this, i think the court should be taking more cases on the merits. i'll make one last pitch here. scott and matt have the advantage of at least being able to file cert petitions on behalf of a state. state on top petitions do get a pretty close look up at the court. cam and i are in the less fortunate position of filing cert petitions for plucky noninstitutional litigants. i think one of the things that really increases the chances of the court taking one of our cases is if there is substantial amicus support. i would urge folks when there are issues that we think we'd love to get in front of this court while we have this court, try to sort of band together a little bit and file amicus briefs to get these issues so these cases don't get lost in

the shuffle is something that helps a lot. >> i think a paul clement petition gets plenty of attention. [laughter] >> several of you have touched on post-casa right. we have maybe a decline in seeing nationwide injunctions. does that mean it's finally ripe for the court to decide the question, which is frankly where most of the emergency applications rise out of any waist which is agency rules. that sort of thing. do we expect the court will decide? 706 means. or it's a constitutional remedy that the courts possess. >> i think they are going to decide it. the trump administration is pushing it. i don't think they have the votes, though. to depart from the current position. i think it's certainly a strategic decision to continue pushing that view. i don't see where you get the fifth vote. i'm not sure i understand the strategy because instead of getting nationwide, you have to

go back to the notice and comment process on the series of regulations you disagree are from a policy perspective. i think they tried, they pushed it on bok at the fifth. i suspect it will be at the court within a year or two. >> obviously we have seen a lot of action on executive power. other than perhaps humphrey's executor and president's power over tariffs, any other executive power precedents or areas we should expect to see the court rule on? >> i'll offer one from the perspective of states. a lot of executive power issues you see now is can the executive do this? i'll offer one maybe more along the lines can only the executive do this? that would be immigration. arizona vs. the united states the supreme courtish shied a decision -- issued a decision that sharply limited states' ability to address illegal immigration.

it's been red to -- read to sometimes completely bar states from doing anything in entire areas. given the importance of that topic, it's been practically hugely important in both president trump's administrations, but also when you don't have an executive that is eager to enforce the immigration laws, it's one of these odd areas where they can just go largely unenforced to a very significant extent. if states are completely powerless, then the policy consequences are unavoidably bad. i think that might be a possible topic. justice scalia issued a very strong dissent that raised sovereignty themes. state's inherent power to address those kinds of issues. good historical analysis of those issues. it's not as hot a topic during this kind of administration, but i think it could become hot again in the coming administration.

>> i got a shameless plulg answer -- plug answer to this. in our case, the harvard case, footnote 4 of the opinion, that was interesting. the chief justice said we are not deciding the constitutionality of raced based admissions at our u.s. military academies. to the trump administration's great credit and to the credit of our client, edward bloom and students for fair admissions, s.f.f.a. immediately almost turned around and sued the naval academy and west point to test that footnote. pleased to report as executive power, the military has entered settlements and they are not using race in admissions in any of the u.s. military academies going forward. [applause] >> i'll offer a couple of bonus thoughts on this. i think questions about

appropriations and the extent to which the executive branch has to expend appropriated funds and the extent to which kind of the power of the purse interacts with the power of the executive to take care that the law is faithfully executed, those issues will get up in front of the court. there are obviously going to be issues in a variety of sort of dynamics where the sort of limits on executive orders and what can be accomplished through an executive order as opposed to what requires legislation, i think those issues are going to get in front of the court in probable about a dozen different flavors. it's not like one doctrine in a will be -- that will be at stake in those cases the way humphrey executors will be at steak in the slaughter case. that sort of line about how much policymaking can be done in the executive branch is something

that will get up there. it's a little off topic i suppose, but the other issue that's going to be an interesting one to watch really is the question of the power of the judiciary. i think one of the more interesting and important cases of the last couple of decades that kind of went unnoticed for largely unnoticed for about two decades, until the casa decision really put a spotlight on it, but the group mexicano case and the notion that the equitable powers of the federal courts are really limited to what was available in equity in 1789 because of the equitable powers go back to the judiciary act of 1789. that's a really big deal. in sort of a way like, i was talking about with heller, if that's right, there ought to be a lot of things that change. and the court said that in the

case and not much changed. i think by refocusing on that there really are some interesting opportunities that could find their way all the way to the supreme court. just to pick one example, for those of you that do a little bit of tort litigating and the like, mass torts, one of the classic ways for to get around the limits on b-3 class actions is to have a b-2 class action that involves medical monitoring. and the idea that medical monitoring is an equitable remedy and therefore it's a b-2 class. you don't need opt out and all those things. if you can show me a 1789 chancery court decision that ordered medical monitoring, i will be highly surprised. there are aspects of equitable

practice today that are accepted. it's very commonplace that i think are hard to swear. that may be another area where -- of new interest in the court. >> certainly. the court has the one case that asks about equitable powers over reinstating and removal from public office. i think it's an interesting area to watch. anything else before we open up for questions from the audience that panelists would like to make? future of the robert court? any other cert case, cam, you want us to consider? >> all of mine. >> i don't know who has the microphone. we wanted to save the last 15 minutes for any questions from the audience. [applause] who is the point person with the

microphone? >> my name is mark from u.s. tax credit. this has nothing to do with tax, fortunately. i'm wondering if any of the panelists are seeing anything bubble up that would change or challenge on originalist grounds the constitutional criminal procedure cases of the 60's, or the voting and redistricting cases of the 1960's? where the supreme court evidently went way, way, way beyond any original meaning of the constitution or the 14th amendment. >> anyone want to take that? we have the -- >> i was thinking cam might want to talk about -- >> redistricting? >> but, i'm happy to take a crack if you don't want to. >> they have a huge case in front of them right now in redistricting. we are eagerly awaiting the

decision in clay. could be monumental change in how that field works. in terms of criminal procedure, personally find interesting, sort of an old thing that the conservative justices used to attack which was the exclusionary rule, i think if you are an originalist there is not much to say for the excollusionary rule as a remedy. there is not much to say especially about the federal courts somehow applying that to the states in a binding manner. i think there are -- this is one of those areas where -- there is a lott of death penalty jurisprudence you see it getting tested. state legislatures will have to tee these issues up by crafting new legislation that tries to challenge the precedent in question to get that litigated that way. that will be an interesting avenue. i think i read yesterday there are states trying this with respect to the death penalty for those who sexually assault children and put that back on the table to bring those cases up to the court. >> i think florida might be one

of those. >> pepper, chair of the limit employment practice group. was the set of opinions the high water mark of failed efforts to overturn, or is there a case out there or could there be a case that might get five votes for that purpose? >> i don't think that jarkasy is the high water mark. i think that in a sense i hope that there will be follow on cases that extend it and make clear there is nothing about the doctrine that is limited to the s.e.c. our earlier keynote speaker, judge bumatay, wrote a wonderful dissent in the ninth circuit case pointing out how many of the remedies that the nlrb has

discovered lurking within its statute are inconsistent with the 7th amendment and with the thrust of jarka y -- sy. we are in the process of indvindicate his view on that. hopefully there will be opportunities to continue in that direction. i would say more broadly, one of the things i loved about the jarkasy opinion was the fact that it sort of harkened back to the declaration of ipped pens -- independence. sort of this 250th year, i think there is a lot to be said for rereading that amazing document. my recollection of it is there's actually two places in the grievances that the framers had where they talked about the king cutting back on the right to jury trials. i think that's another area where we may see some additional

and some positive movement in the next few years in the roberts court. >> devin. my question is how far do you think the court is going to go to limit or overturn humphreys executor? do you think it will get completely overturned? only to the executive branch and not the federal reserve? how far do you see the court going? >> it's hard to predict. i think the outcome of any case -- i think most of humtry -- humphrey's executor i thought was already undermined by law to the extent there was anything left from that i think it was just a mere sliver. the court there largely kind of undercut all of the reasoning of humphrey's executor. which is why i'm not necessarily surprised to see what we have been seeing on the emergency docket with respect to removals.

nor do i agree with the influencer professors who say that humphreys was overruled on the emergency docket. they did it in all but name. they don't like to come out and say what they are doing. >> other side? >> morning, david axleman from tallahassee. my question's primarily for mr. rice. on the skrmetti case and the relines on the expert classes, the documents you mentioned were a bombshell. we know the academy of pediatrics, other organizations have issued pronouncements of similar nature. it turns out there is little or no involvement by the membership of those organizations. yet it seems that these courts, like the court in skrmetti and other trial courts have taken for granted that these organizations do speak for their membership and have the support of their membership. my question for you is, do you think going forward courts ought

to be more skeptical given what we have just seen with the gender affirming care cases about whether these expert organization pronouncements represent the views of their membership? relatedly do you think that's fair game in litigation these organizations have invoked associational freedom with some success to prevent discovery into how they make their decisions, and yet when courts are deferring to this, they are being allowed to set public policy without anybody seeing how they have made their decision. do you think that aspect of skrmetti maybe will have some influence going forward? >> i certainly hope so. i certainly hope that everyone realizes that some of these pronouncements are not reflective of the actual members of these bodies. rather that there is a small group of leadership putting out certain positions. i hope that most people in the a.b.a. don't think that the equal rights amendment was rad fied -- was ratified.

in terms of the -- these organizations joining suits, i think that eddie and the folks in alabama gave us a model that if they want to be involved in these lawsuits, and they want to be party to these lawsuits, you should go after all their documents. i suspect that you are going to find with a lot of these groups similar documents to what alabama found when it peaked under the hood in wpath. >> i could add a little. one observation just seeing matt and others litigate these case, we mentioned amicus briefs, there have been a good number of the briefs in the last few years in the cases on skrmetti that explain that a lot of these the expert class, these groups that are opining, are not honest brokers. are not -- really just boil down to be advocacy organizations.

this was a similar issue that came up in the abortion space a lot when you would have these groups portraying themselves as the objective, this is the medical consensus. these would be groups that were plaintiffs in very, very prominent, contentious abortion cases. i think calling it out, being clear about what is going on here is important. and not accepting that there is a consensus or that there is an expert view, or that the expert view is one based on truth or sciences is very important and done well both by litigating parties and states and very, very skilled aamici. >> eric with officer of the attorney general of virginia. this question is for anyone, but i have a feeling it will probably be especially red meat for mr. clement. this question is about a type of deference that i have heard

surprisingly little off in administrative law. so little of i'm not sure how to pronounce it. i think it's auer deference. i'm wondering what you all might think about the future of that type of deference, auer, essentially where the judiciary will defer to an administrative agency on the interpretation not of statutes but of its own regulations. >> i can't resist red meat. never have been able to. auer deference or seminal rock deference, maybe easier to pronounce. they are synonymous. that is exactly what the supreme court sort of blinked on a little bit in kaiser. and they managed to sort of say, well, that kind of deference is limited to sort of very narrow circumstances. i guess i do think that probably

loper, the combination of getting rid of chevron deference, and he then -- and then the kaiser opinion largely limiting our deference is probably maybe enough to sort of take care of the problem. the court may eventually have a cleanup case. there may be a case out there where it really tees up the issue directly. but this could be one of those situations where having done sort of half the job in kaiser and take ago lot of the pressure off of it, because what would happen in the era of seminal rock plus chevron is you have an ambiguous statute that would then be extended by an ambiguous regulation that would then be extended by an interpretation of the ambiguous regulation. if you sort of cut out the first part of this, i think in most of the cases the question at the end of the day is just going to be what does the statute mean? and the agency doesn't have

quite as much scope to sort of get anywhere by promulgating ambiguous regulation and then interpreting it or disam big waiting it in in litigation. it's still out there. obviously the other big issue that's out there is what does skid more respect mean? and does it interviews deuce a lot of the same problems. it depends on how that's applied. then there are also issues about what are the limits. we no longer have deference in this sort of implied delegation, fiction of chevron, but there is still plenty of statutes that i think most courts would interpret as expressly delegating a fair amount of discretion to the agency. some of those statutes end up raising some of the same accountability problems you had under the chevron regime. suffice it to say there are plenty of interesting issues out there and not quite full

employment. but i think there are plenty of good issues out there in the administrative law space. >> yes, sir. >> isaiah mckinnie. my question is to the and, but especially mr. norris regarding the exclusionary rule. i think most originalists would agree the exclusionary rule is atextual. if you get rid of the exclusionary rule, in the climate we live in with qualified immunity, how likely is litigants are going to be able to vindicate their rights under like the fourth and fifth amendments in we removed the exclusionary rule? my fear would be that would create -- removal out of a check on law enforcement from violating the fourth and fifth amendments. unless we do something with qualified immunity, etc. do you think the court would actually get rid of the

exclusionary rule and simultaneously do something with qualified immunity? or is there some other avenue for litigants to hold law enforcement accountable? >> good question. i think state legislature in most instances will have to tee this question up. i think it would be wise is to if you are going to replace the exclusionary rule, replace it with something that still has some protections for instances of truly bad faith action from the police. not something i say very often, i think canada does this pretty well. my understanding of the law in most other countries is that the exclusionary rule is not a penalty for illegal searches or seizures, which happens to benefit those who are actually guilty of crime, just another weird thing about it. but that in cases of egregious police misconduct it can be available as a penalty. you don't want the police to have an incentive to ignore

constitutional rights on purpose. but in a lot of cases -- the last thing the supreme court wrote about this, i believe an opinion from justice scalia about the professionalization of the police and how the fourth amendment -- number of fourth amendment violations is down and the police have become more of a trained institutionalized force, all of that is true. i think you would have some sort of protection for the really bad cases. >> if we are going to put in a plug for originallallism -- originalism, which we are all trying to do here, there is an outstanding originalists argument that qualified immunity is to use a technical term, made up. and that the congress that actually passed the relevant statutes went out of its way to say that it was displacing common law immunities and that somehow got lost in subsequent codifications. i think what it illustrates, this whole area illustrates that the problem with sort of judicial activism and departing

from textualism and originalism is that once you depart, that sort of begets additional departures to make up for the fact you departed in the first instance. as the question alluded to, the best argument for the exclusionary rule is that with qualified immunity there is of course if you go back, you have a remedy for the fourth amendment violation that will be fully available to somebody who is not criminal defendant at all because they are a homeowner that mistakenly had their own unreasonably searched by the authorities, that person would have action, they would not have to say the violation is clearly established, if you had that remedy, the argument would be much stronger. it gets future deviations.

i like cam's suggestion that the state legislature could tee this up not just getting rid of the exclusionary rule but coupling it with a robust civil remedy that has particular applications to individuals who never end up needing a criminal defendant at all. that would be a powerful statute that could tee up the issue effectively. >> thank you. >> you will be our last question. >> i'm an early career and public lawyer. i would like to ask the panel what is the best advice for preparing for oral argument? >> the best advice i got before this argument actually came from cam. when you are prepping for one of these big arguments i was extremely nervous, it was my first supreme court argument. you have all of these smart people, smart lawyers asking you

questions. after a while you start to feel pretty dumb. cam, early in the process had insisted to me that we not do an outside moot the week before the argument. we did a konsa boy only -- i needed to provide feedback like i was paul clement. that was the best thing for me to have that confidence when you are going in to the argument. i think moots are very valuable. it is useful to only have your team and not have outside thoughts from people who don't know the case as well as you do. >> i will just give one tidbit. a mistake you could make in getting ready for an argument, especially the supreme court argument, you will prepare and

prepare. within a couple of days you know the case like nobody else on the planet. there could be a tendency a couple of days before the argument to start needing materials that are more and more tertiary to the case. you have read all of the primary materials, you start to look at some tertiary case as if it's the rosetta stone that unlocks everything. only once or twice it is enough to see it and not do it. to start the argument about some case that is only cited, it is good discipline in the last couple of days to go back to the primary materials. read the lower court opinion,

the supreme court cases that are most on point and reread the briefs and not get yourself lost in tertiary materials as you get to the home stretch. maybe a complement to the idea make sure your last moot court is a friendly one. >> one way to do that is talk to family, spouses, kids, smart friends, even lawyers not working on the case. talk to them a little bit if they will listen to you. you will see if you already brought it down, you don't want to get lost in the weeds. the justices are the absolute best at asking questions that are really difficult. they are right on typically the four or five issues that really matter in the case. that is what matters in the lead

up. >> those are all great points. the thing i would say is it is something to think about over the long haul. oral arguments review -- reveal character. especially if it is a controversial case, you are under a lot of stress. you could hear advocates in difficult cases. you could tell if somebody is a jerk, if they are impatient, all of those things come out. it is great to know everything we can about the law. there is no replacement for character. especially to young law students, build your legal skills, oral argument skills, build your character. that will determine how far you come and how you do for better

or worse. [applause] >> that's a very fitting end to our panel. could we get the ball around of